concurring in part and dissenting in part:
I have concluded that the fair-comment privilege should protect the statements complained of. If the statements should not be so protected, however, I have concluded that the majority has misapplied both our own standard for summary judgments and the actual-malice standard of New York Times.
Plaintiffs’ unverified complaint was filed on June 28, 1976. Pechous’ answer was filed on July 30 of that year. Defendants Fineman and Field moved for summary judgment on October 26, 1976. Plaintiffs’ reply and cross-motion for summary judgment was filed May 31, 1977. The trial court granted defendants’ motion and denied plaintiffs’ cross-motion on June 9, 1977. The relevant portion of the trial court’s order was as follows:
“1. The statements by Defendant Pechous which appear in the article do not fall within the scope of Lulay v. Peoria Journal-Star, Inc., 34 Ill. 2d 112, and related cases or within the scope of Blair v. Walker, 64 Ill. 2d 1 and related cases.
2. Their [sic] is a question of fact about whether Defendants Fineman and Field Enterprises, Inc. published the article in question with actual malice as defined in New York Times Company v. Sullivan, 376 U.S. 254 and related cases.
3. Application of the ‘innocent construction’ rule of John v. Tribune Co., 24 Ill. 2d 437 renders the statements in the article non-actionable against Defendants Fineman and Field Enterprises, Inc.”
Defendant Pechous then moved, on July 18, 1977, for summary judgment on grounds that his statement expressed an opinion, on grounds that his statement could be innocently construed, and on grounds that the court had already dismissed the other defendants. Plaintiff’s reply and cross-motion argued that defendant’s statement was libelous per se, that it could not be construed innocently, that the trial court’s ruling as to Fineman and Field was not binding as to Pechous, and that Pechous’ statement was made with actual malice.
The actual-malice argument of the plaintiffs was premised upon Pechous’ alleged failure to provide facts supporting a charge of bribery and that “[n] othing in any other document submitted by defendant Pechous pursuant to plaintiffs [sic] interrogatories and request provides any basis for said Defendant’s accusation against Plaintiffs.” The trial court, on September 22, 1977, granted defendant’s summary judgment motion solely on the basis of the innocent-construction rule and did not rule on whether there was a question of fact about defendant’s alleged actual malice.
The facts submitted and argued to the trial court and deemed relevant by all sides included primarily documents submitted by Pechous in response to plaintiffs’ interrogatories. Included among these documents were the minutes of the December 29, 1975, council meeting, commented upon only briefly by the majority. The minutes show that Pechous’ brother was absent. Item IB of the minutes, located prior to any consideration of the garbage contract, states:
“The City Clerk requested that he be excused because he is ill and thereupon a motion by Alderman Cox, seconded by Alderman Catalano was made designating the Comptroller be Clerk Pro-Tem for this meeting. On a voice vote the Mayor declared MOTION CARRIED.”
Pechous’ signature is affixed below this item. The minutes of this meeting show, moreover, the name of each person who spoke on the question of the garbage contract, including the names of private citizens and city officials speaking as private citizens. Defendant Pechous’ name does not appear in the minutes after he was listed as excused on account of illness.
The minutes also reveal that the council decided to open the sealed bids only of those companies represented at the meeting. After a short recess, the aldermen declared that an emergency necessitated an appropriation of $600,000 for a private-scavenger-service contract for 1976. A second motion was then passed to accept the bid of Clearing Disposal, Inc., and providing that “such contract be awarded without the necessity of advertising for competitive bids.” Two motions were also passed to reduce the employment status and salary of the commissioner of public works and the city attorney. Both of these individuals opposed the move to a private scavenger service. The minutes disclose, too, that John Van Tholen, Jr., spoke at the meeting just prior to the adoption of motions to accept the bid of Clearing Disposal, Inc.
The other documents submitted on the record by Pechous and which the plaintiffs, by the excerpt of their summary judgment motion quoted above, admitted to the trial court were relevant, reveal that Pechous was not the only city official “imagining” improprieties. The mayor vetoed the motions passed at the December 29 meeting. His message, dated January 5, 1976, stated in part:
“The worst act of deceit was that practiced by the Public Works Committee. At their 7:00 o’clock Committee meeting on December 29, 1975, there was a discussion of the pros and cons of awarding a private scavenger contract, but the meeting was adjourned with the private scavenger operators present (except three favored firms who just happened to remain after the Committee meeting) assuming that the Council would consider the sealed bids submitted as a result of the advertisement as required by law and to be opened on January 12, 1976. Why didn’t Alderman Clifford tell all the prospective bidders to remain? Why didn’t all prospective bidders have an equal chance to receive the contract? It wasn’t a spur of the moment decision to award a contract last Monday. The Aldermen all had been primed in advance. Alderman Clifford had the statutory provisions they relied on written out. Alderman Slawko and Alderman Catalano quoted liberally from them during discussions on the Council floor.
You must have met secretly somewhere before the meeting — why don’t you let the citizens in on your plans? What was the need for secrecy? Were you planning the strategy so you could selectively award the contract? Were you afraid the people would object? What was your rush?”
In a separate message sent on the same day, the mayor explained that the city council’s action violated section 8 — 1—6 of the Illinois Municipal Code. A third message from the mayor explained his veto of the motions to reduce the employment status and salaries of the commissioner of public works and the city attorney in these words:
“The City Council’s actions are also an obviously vindictive attempt to force fine and dedicated public officers to resign because of the large salary cuts involved. *** Lastly, however, and a far greater reason for my vetoes, is the fact that this series of Ordinances and Resolutions are directly contrary to the Decrees of Judge Arthur Dunne and the injunctive orders he has issued in connection with the Council’s attempts to effect [sic] these very City offices.”
The city attorney, in a separate message also dated January 5, 1977, advised the council:
“ [I] n my legal opinion, the declaration of an emergency as articulated by you is inadequate and your actions last week in declaring an emergency are illegal.
The validity of this contract lies, of course, on the validity of your actions last week. You violated the bidding laws by a spurious declaration of emergency when none apparently then existed. By so doing you have opened the City to claims by private scavenger firms who were not favored by being included in the private bidding engaged in last week.”
Thus, not only was the original award of the contract declared illegal, as noted in the article at issue and uncontroverted by plaintiffs, but as the latter messages indicate (and their accuracy was not challenged) additional illegalities and improprieties were perpetrated by the city council.
Applying the actual-malice standard, the “pleadings left unresolved several issues of fact: whether Pechous, at the meeting of December 29, had made the statement alleged in paragraph 1 of the complaint; whether he had made the statement to Fineman alleged in paragraph 2; whether these statements were false; and whether Pechous had made them with knowledge of their falsity or with reckless disregard of their truth or falsity.” (83 Ill. 2d at 153.) To grant plaintiffs’ motion for summary judgment against Pechous, all of these issues would have to be resolved against him. The inquiry should be undertaken, as the majority purports to do, without consideration of the affidavit of Thomas P. Hardy.
The majority argues that Pechous must be considered to have made his remarks on December 29 because he is repudiating the date of the statement only after an adverse judgment, a course of action barred by People v. Van De Rostyne (1976), 63 Ill. 2d 364, 370, and People ex rel. Scoon v. Chicago & Alton R.R. Co. (1911), 253 Ill. 191, 196-98. I find these cases inapposite. In Van De Rostyne, the court noted that “the action of the trial court resulted from the error of the defendant in mislabeling his motion, and he should not now be permitted to profit by that error.” (63 Ill. 2d 364, 370.) In Chicago & Alton R.R. Co., one of the parties attempted to submit new information, after the court’s decision, which was contrary to the statement of the case provided in the briefs and arguments.
In the instant case, in contrast, Pechous filed an answer which denied every factual allegation of the plaintiffs’ complaint. By moving for summary judgment on the basis of the innocent-construction rule, Pechous might be considered to have admitted that he made the statement alleged in the complaint, but he did not thereby indicate that he made the statement on December 29. The innocent-construction rule renders immaterial any inquiry as to a defendant’s actual malice and any consideration of when the statement was made. By contending that there was “no genuine issue as to any material fact ***” (emphasis added) (Ill. Rev. Stat. 1977, ch. 110, par. 57(3)), on the bases he argued, he was not contravening his answer’s denial of the other allegations in the complaint.
In Carruthers v. B. C. Christopher & Co. (1974), 57 Ill. 2d 376, 380, this court said that “[e]ven though a complaint and answer may purport to raise issues of material fact, if such issues are not further supported by evidentiary facts through affidavits or such, summary judgment is then appropriate. [Citation.] If the party moving for summary judgment supplies facts which, if not contradicted, would entitle such a party to a judgment as a matter of law, the opposing party cannot rely upon his complaint or answer alone to raise genuine issues of material fact.” (Emphasis added.) In this case, the plaintiffs have been granted summary judgment against Pechous on the basis of a statement alleged in an unverified complaint to have been made on December 29, without supporting that allegation with a single evidentiary fact, i.e., without supplying an evidentiary fact which would entitle them to a judgment as a matter of law. The plaintiffs have relied upon their unverified complaint to do more than raise an issue of material fact; they have won a judgment on that basis. Therefore, the validity of Carruthers is open to question.
Waiver and estoppel, moreover, are double-edged swords. Plaintiffs admitted in the trial court that Pechous’ statements could be considered with reference to the documents he submitted in response to plaintiffs’ interrogatories. Many of these documents existed only after the December 29 meeting, and plaintiffs never challenged their relevance in the court on this basis. Generally issues not presented to the trial court cannot be presented for the first time on appeal. (People ex rel. Wilcox v. Equity Funding Life Insurance Co. (1975), 61 Ill. 2d 303, 313; Kraus v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 147; Little Sister Coal Corp. v. Dawson (1970), 45 Ill. 2d 342, 349.) Had the plaintiffs in the trial court relied upon an allegation that Pechous had no knowledge of the circumstances indicated in the messages of the mayor and city attorney, Pechous would then have had an opportunity to contravene that argument in the trial court, by denying the allegation, by submitting additional evidence, or by pointing out the evidence which was properly in the record and which indicated that he could not have made his statement on December 29. The plaintiffs have illegitimately prejudiced Pechous by waiting until the case was on appeal to argue that the documents Pechous submitted in response to interrogatories were irrelevant to the statement alleged in the first paragraph of the complaint. We should not selectively apply the doctrines of waiver and estoppel; the case should remain as the parties shaped it in the trial court.
Thus, Pechous did not erroneously assume that “all eight aldermen voted to award the contract ***” or mistakenly say that his brother was a subject of his critical remarks. He correctly assumed all eight aldermen voted to award the contract and correctly included his brother as a subject of his remarks, because they were made at a meeting when his brother was present.
Even if it were beyond dispute that Pechous first made his statement on December 29, it does not follow that it was made with actual malice as a matter of law. Professor Lay cock, one of the reporters to the Committee on Motion Practice of the Illinois Judicial Conference, in an article expressing his own views, has explained that in a summary judgment motion the movant concedes that well-alleged facts “submitted in opposition are true.” He continues:
“[S] imilarly, well-alleged facts submitted in support of the motion are taken as true unless contradicted by well-alleged facts. However, affidavits supporting the motion are strictly construed, whereas affidavits opposing the motion are liberally construed. An oft-stated but incorrect assumption is that both sides’ affidavits must be construed strictly. In reality, the rules are stacked against the movant, who must show beyond doubt that he is entitled to judgment.
Even if the physical facts are completely undisputed, there may be a triable dispute over the characterization of those facts, or the inferences to be drawn therefrom. Moreover, characterization of the facts may depend on nuances and details not easily developed by affidavit. Thus, it is rarely possible to grant summary judgment on certain issues, for example, negligence. *** Similarly, questions of motive, intent, or subjective feelings are rarely appropriate for summary judgment. *** If the affidavits and other materials disclose a genuinely disputed material issue, summary judgment must be denied no matter how likely the court thinks it is that the movant will win at trial. Summary judgment cannot be used to try the disputed issue.
* * *
A commonly heard statement is that when both sides move for summary judgment, they agree that only a question of law is involved. This is not always true, e.g., if the motions are unrelated, as where plaintiff moves for summary judgment on the merits and defendant moves for summary judgment on the ground that plaintiff lacks standing. In any event, the parties’ agreement is not binding on the court; it may deny both motions if it finds a material issue of fact. The normal standards are to be applied to each motion, and they should be considered independently. All the affidavits may be considered on both motions, but those that are strictly construed with respect to one motion will be liberally construed with respect to the other, and vice versa.” (Laycock, Dispositive Pre-Trial Motions in Illinois — Sections 45, 48 and 57 of the Civil Practice Act, 9 Loy. Chi. L. Rev. 823, 848-51 (1978).)
The United States Supreme Court has twice recently reminded us that “proof of ‘actual malice’ calls a defendant’s state of mind into question [citation] and does not readily lend itself to summary disposition.” (Hutchinson v. Proxmire (1979), 443 U.S. 111, 120 n.9, 61 L. Ed. 2d 411, 422 n.9, 99 S. Ct. 2675, 2680 n.9; Wolston v. Reader’s Digest Association, Inc. (1979), 443 U.S. 157, 161 n.3, 61 L. Ed. 2d 450, 456 n.3, 99 S. Ct. 2701, 2704 n.3.
This court has noted previously “the movement away from objective standards of reasonable or reckless conduct, and toward an emphasis upon the subjective frame of mind of the actor, which has characterized the development of the new constitutional common law of libel.” (Tunnell v. Edwardsville Intelligencer, Inc. (1969), 43 Ill. 2d 239, 247.) Pechous, in an affidavit based upon his personal knowledge, denied that his statement was made with actual malice. The credibility of that denial is a disputed issue here, and the plaintiffs have the burden of proving that denial incredible. Such an issue should be resolved by a fact finder who can judge Pechous’ demeanor and his contentions as tested by cross-examination at trial. The majority opinion contravenes the formerly well-settled principle that “ [t] he court cannot determine the truth of defendant’s affidavit of merits in a summary judgment proceeding.” Diversey Liquidating Corp. v. Neunkirchen (1939), 370 Ill. 523, 530; see also Zeinfeld v. Hayes Freight Lines, Inc. (1968), 41 Ill. 2d 345; Ray v. City of Chicago (1960), 19 Ill. 2d 593; Pilson v. Roush (1980), 82 Ill. App. 3d 187.) And the St. Amant case (St. Amant v. Thompson (1968), 390 U.S. 727, 732, 20 L. Ed. 2d 262, 267-68, 88 S. Ct. 1323, 1326), cited by the majority in support of its holding, does not support the grant of summary judgment here. The court there said the “[professions of good faith will be unlikely to prove persuasive, for example, where a story is [fabricated, imagined or based on an anonymous, unverified telephone call](St. Amant v. Thompson (1968), 390 U.S. 727, 732, 20 L. Ed. 2d 262, 267-68, 88 S. Ct. 1322, 1326.) The court did not rule out the possibility, however, that a “finder of fact” would be persuaded under those circumstances of a defendant’s good faith; the court was clearly discussing permissive inferences which a trier of fact might or might not choose to draw.
Nor are the circumstances discussed in St. Amant necessarily present here.
One reason for this latter belief is the majority’s distorted construction of Pechous’ answers to plaintiffs’ interrogatories. Plaintiffs never even asked Pechous in the interrogatories about the alleged December 29 statement. The precise interrogatory about his investigation was:
“1. With reference to an article, entitled Berwyn Trash Pact Raises Stink, written by Mark Fineman and published in the May 12-13, 1976 edition of Suburban Week, a publication of Field Enterprises, Inc., a copy of which is attached to the complaint herein as Exhibit A:
b. Detail any investigation you made of the circcumstances of the awarding of said contract.”
Pechous’ answer, that he conducted “ [n] o formal investigation,” is an understandable response to this question. He had no power to convene a grand jury or to deploy investigators on this case. In interrogatory 1(c) he detailed the information he provided to defendant Fineman, which included previously discussed information like the minutes of the December 29 meeting, the mayor’s veto, the motion to override the veto, the city attorney’s communication, and also (1) the minutes of the January 5 and January 12 meetings, which indicated that the council voted to reject unopened the bid of SCA Services, Inc., on the very date they had previously set for the submission of all bids, (2) a telegram from SCA declaring unlawful the award of the contract to Clearing Disposal, Inc., and indicating that the council’s actions might be referred to the U.S. Attorney’s office, and (3) the information that John Van Tholen, Jr., had been hired by Clearing Disposal, Inc. His answer that no formal investigation had been undertaken must be considered insignificant in comparison to the information he had collected and turned over to the reporter.
If the “no formal investigation” answer is combined with the erroneous assumption that he made his initial statement on December 29, the picture painted is one of irresponsibility. I find this picture inaccurate because the answer in context reveals that he did take substantial measures to collect relevant and damning information before talking to the reporter and because the information collected was, as plaintiffs conceded in the trial court, available to Pechous when he first made his statement.
I also consider that the majority has misinterpreted the meaning of Pechous’ communication. I cannot conclude, because of the ambiguity surrounding the initial date of his statement, that John Van Tholen, Jr., had not been hired by the parent company of Clearing Disposal when Pechous first made his statement. Pechous’ statement, in my view, could be understood to have imputed that a quid pro quo took place, a “singularly imprecise” but nonactionable characterization of the relation between John Van Tholen, Jr., the aldermen and Clearing Disposal. See Tunnell v. Edwardsville Intelligencer, Inc. (1969), 43 Ill. 2d 239, 246-47.
I note in passing that the majority, in its discussion of Pechous’ intended meaning, has forgone an opportunity to clear up the confusion over the innocent-construction rule. The rule has been inconsistently applied and recently ignored in this court. (Compare Coursey v. Greater Niles Township Publishing Corp. (1968), 40 Ill. 2d 257, and Valentine v. North American Co. (1974), 60 Ill. 2d 168, which purport to apply the rule, with Suchomel v. Suburban Life Newspaper, Inc. (1968), 40 Ill. 2d 32, Tunnell v. Edwardsville Intelligencer, Inc. (1969), 43 Ill. 2d 239, and Troman v. Wood (1975), 62 Ill. 2d 184, which do not apply the rule.) Nor can the standard announced in Troman (62 Ill. 2d 184) be reconciled with the standard announced in John v. Tribune Co. (1962), 24 Ill. 2d 437. If the disregard of stare decisis among judges of appellate courts is problematical (see Schaefer, Forward: Stare Decisis and the “Law of the Circuit, ” 28 De Paul L. Rev. 565 (1979); Mattis and Yalowitz, Stare Decisis Among [sic] the Appellate Court of Illinois, 28 De Paul L. Rev. 571 (1979)), surely it is intolerable to have the innocent-construction rule consistently applied in the circuit courts and the appellate courts while it is ignored in this court.
I think, in sum, that as to Pechous, assuming that the actual-malice standard is applicable, either summary judgment should be granted in his favor or the case should be remanded for trial.
As to defendants Fineman and Field, on this record I find their conduct more culpable than Pechous’. In Herbert v. Lando (1979), 441 U.S. 153, 156-57, 60 L. Ed. 2d 115, 121-22, 99 S. Ct. 1635, 1639, the court stated that defamation plaintiffs must prove that the defendants “had published a damaging falsehood ‘with “actual malice” — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.’ This was the holding of New York Times Co. v. Sullivan, 376 U.S. 254, 280 [11 L. Ed. 2d 686, 84 S. Ct. 710] (1964), with respect to alleged libels of public officials, and extended to ‘public figures’ by Curtis Publishing Co. v. Butts, 388 U.S. 130 [18 L. Ed. 2d 1094, 87 S. Ct. 1975] (1967). Under this rule, absent knowing falsehood, liability requires proof of reckless disregard for truth, that is, that the defendant ‘in fact entertained serious doubts as to the truth of his publication.’ St. Amant v. Thompson, 390 U.S. 727, 731 [20 L. Ed. 2d 262, 267, 88 S. Ct. 1323, 1325] (1968). Such ‘subjective awareness of probable falsity,’ Gertz v. Robert Welch, Inc., 418 U.S. 323, 335 n.6 [41 L. Ed. 2d 789, 802 n.6, 94 S. Ct. 2997, 3004 n.6] (1974), may be found if ‘there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports.’ St. Amant v. Thompson, [390 U.S. 727, 732, 20 L. Ed. 2d 262, 267-68, 88 S. Ct. 1323, 1326 (1968)].” The court also noted that it had affirmed a jury verdict of liability for defamation in Curtis Publishing Co. v. Butts (1967), 388 U.S. 130, 18 L. Ed. 2d 1094, 87 S. Ct. 1975 by examining “direct as well as indirect evidence” for proof of actual malice. (Herbert v. Lando (1979), 441 U.S. 153, 160, 60 L. Ed. 2d 115, 124, 99 S. Ct. 1635, 1641.) Information on that record and considered probative included, inter alia, the Saturday Evening Post’s motives in publishing the story at issue, its sources and its “conclusions as to the importance and veracity of sources and information presented in the article.” See Herbert v. Lando (1979), 441 U.S. 153, 157-61 & nn. 2 & 6, 60 L. Ed. 2d 115, 122-24 & nn. 2 & 6, 99 S. Ct. 1635, 1639-41 & nn. 2 & 6.
Thus, the majority appropriately discussed the notes submitted by the reporter in the course of his investigation which state: “strongly feel $ has changed hands instinctive feeling.” And the majority implies that the result reached here would be reversed “had it been shown, by way of depositions, answers to interrogatories, admissions, or affidavits, that Pechous had told Fineman that his charge of bribery was prompted by ‘instinct’ alone and that he had no evidence to support it.” 83 Ill. 2d at 170.
The reporter, however, did answer interrogatories propounded by plaintiffs. Interrogatory No. 3(d) asked:
“With reference to your talking with the said Robert C. Pechous regarding the awarding of said contract: State whether any tape recording, written memorandum or other record of such talk(s) was made by you. If so, produce a copy of each such recording, written memorandum or other record.”
The reporter replied: “Yes — see notes attached.” It is also significant that, in plaintiffs’ petition for leave to appeal, the “instinctive feeling” quotation was cited and relied upon as a ground justifying the reversal of the appellate court’s decision. The accuracy or the meaning of this quotation has never been challenged in this court by defendants Fineman and Field, despite numerous opportunities to do so. In oral argument, counsel for petitioners stated, while discussing whether defendants Fineman and Field had exercised caution in printing Pechous’ quotation: “What more elementary precaution can there be than to have an individual who makes the charge himself admit to a reporter that he has no facts and say beyond that to the reporter as the record in this case demonstrates, that I have an instinctive feeling, I think money changed hands ***.” Counsel for Pechous also quoted and relied upon the “instinctive feeling” quotation in argument. Counsel for defendants Fineman and Field never challenged the accuracy or meaning of the quotation. Even without this particular quotation, however, I think it is clear from Pechous’ reported comments (see the appendix) that Pechous’ “charge” was a suspicious inference and that he accurately communicated the state of his own knowledge to the reporter. If the facts Pechous had were insufficient to shield him from liability, those same considerations should operate against granting Fineman’s and Field’s motion for summary judgment.
The reporter had plenty of time to compose his story and a perspective of several months which was unavailable to participants at the January meeting, like Pechous and members of the audience who, according to one of the aldermen, yelled “payoff” as the contract was voted upon. He had Pechous’ information and had obtained the exculpatory explanations of the aldermen. He made an investigation and found no evidence cash payoffs had been made. He then transformed Pechous’ statement into the hard factual charge of payoffs. Moreover, he could have written the article without quoting Pechous’ “30 pieces of silver” statement. The gist of the controversy could have been repeated without it. In my view, therefore, the evidence does not justify holding Pechous liable while exonerating defendants Fineman and Field.
Thus far I have accepted, arguendo, the majority’s determination that the actual-malice standard had to be applied. If this court purports to apply that standard, it should be correctly applied.
There is some merit, however, in applying a fair-comment privilege to Pechous’ remarks and to the reporting of those remarks.
The fair-comment privilege has been recognized by the United States Supreme Court (see New York Times Co. v. Sullivan (1964), 376 U.S. 254, 292 n.30, 11 L. Ed. 2d 686, 713 n.30, 84 S. Ct. 710, 732 n.30), although the extent of the privilege has never been defined. In Greenbelt Cooperative Publishing Association v. Bresler (1970), 398 U.S. 6, 26 L. Ed. 2d 6, 90 S. Ct. 2537, however, the court decided that a newspaper’s accurate report of tumultuous city council meetings in which several speakers characterized a prominent local builder’s negotiating position as blackmail was not actionable defamation. The basis for the charge of blackmail was clearly set forth in the article; consequently it was unreasonable to conclude that the word “blackmail” constituted anything other than “a vigorous epithet used by those who considered [the builder’s] negotiating position extremely unreasonable.” (398 U.S. 6, 14, 26 L. Ed. 2d 6, 15, 90 S. Ct. 1537, 1542.) And in Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997, the court distinguished opinions and ideas, incapable of being proved false and therefore nonactionable, from actionable false statements of fact. The former, said the court, depend on the competition of other ideas for their correction, while the latter do not advance society’s interest in robust debate. 418 U.S. 323, 339-40, 41 L. Ed. 2d 789, 805, 94 S. Ct. 2997, 3007. See also Old Dominion Branch No. 496 v. Austin (1974), 418 U.S. 264, 41 L. Ed. 2d 745, 94 S. Ct. 2770.
Since the persons allegedly defamed here were public officials and since the comments made concerned a matter of public significance, we would not in this case have to decide the extent of protection afforded to opinions concerning private individuals or private matters. See Pfister v. Milwaukee Free Press Co. (1909), 139 Wis. 627, 640, 121 N.W. 938, 944; Hill, Defamation and Privacy Under the First Amendment, 76 Colum. L. Rev. 1205, 1229 n.113 (1976).
The majority here holds that Pechous’ comments, because they supposedly impute bribery, cannot be considered an opinion because it is not “ ‘rhetorical hyperbole’ ” and because it informed the audience that a criminal act “of which the audience was unaware” had been committed. (83 Ill. 2d at 162.) I do not think, however, that the audience believed Pechous had more information than it did. (Cf. Restatement of Torts (Second) sec. 566, comment c (1977).) Pechous’ remarks were suspicious inferences, stated and understood as such, and based upon public information. The members of the public who heard or read Pechous’ remarks were fully able to make up their own minds on the issue, and they could conclude either that Pechous had defamed himself by making an unwarranted inference or that his suspicion reflected and represented their own views. The majority has unwisely chosen to assume that the categories of fact and opinion are mutually exclusive (cf. Restatement of Torts sec. 566, comment b (1977)), ignoring the role of the tentative hypothesis and the inferential comment in public discourse. People do not communicate solely by asserting conclusions about which they are completely certain, and people are not understood in such a fashion. The majority opinion would logically encompass mere questions which indicate that the questioner is suspicious.
Inferential comments concerning political issues and public figures can have great value to the political process. An evaluation of known or available facts may spark the production of additional information through the investigatory actions of others and additional discussion by those seeking to implement a particular program. Pechous’ comments in this case did spark such activity.
In this case, moreover, the defendants were public officials. Public officials generally have access to the media (Troman v. Wood (1976), 62 Ill. 2d 184, 193); hence not only is the factual predicate known, permitting the public to reach its own conclusions (about the speaker as well as the plaintiffs), but it is likely that the competing inferences will be heard. Here, the media reported in the same article the countercharges of the aldermen, to wit, that Pechous’ statements were motivated by political ambition and partisanship, and their defense of the merits of the private-scavenger-service contract. This access to the marketplace of ideas distinguishes this situation from those in which an authoritative pronouncement that a particular statement was false (Troman v. Wood (1976), 62 Ill. 2d 184, 195) is desirable.
There may be instances in which the fair-comment privilege should be defeated: (1) if an expression implies that the speaker is aware of defamatory facts unknown to his listeners or readers (compare Restatement (Second) of Torts sec. 566, comment c, illustration 4 (1977), with Restatement (Second) of Torts sec. 566, comment c, illustration 5 (1977)); and (2) if the source of the defamatory inference conceals, with actual malice, facts which would tend to negate the inference. (See Curtis Publishing Co. v. Butts (1967), 388 U.S. 130, 18 L. Ed. 2d 1094, 87 S. Ct. 1975; Cianci v. New Times Publishing Co. (2d Cir. July 11, 1980), 49 U.S.L.W. 2070.) In both situations, the public is prevented from making up its own mind on the issues and the courts should intervene to assure a fair public debate.
The problem with restricting the fair-comment privilege to hyperbolic, loose or figurative statements is that the privilege will only protect those who defame in ambiguous language. (This same criticism is made of the innocent-construction rule.) All critics may not be so crafty. And certainly the difficulty of determining which comments have a meaning enabling their verification (compare the majority opinion in Old Dominion Branch No. 496 v. Austin (1974), 418 U.S. 264, 282-86, 41 L. Ed. 2d 745, 761-63, 94 S. Ct. 2770, 2780-82, with the dissent (418 U.S. 264, 296-97, 41 L. Ed. 2d 745, 768-69, 94 S. Ct. 2770, 2787 (Powell, J., dissenting)) — the inquiry necessary to determine, under the majority’s approach, whether a statement constitutes a fact rather than an opinion — may be more difficult than deciding the scope of the privilege under the approach I would take, especially in view of constant changes in word usage. See Yankwich, Recent Developments in the Law of Creation, Expression, and Communication of Ideas, 48 Nw. U.L. Rev. 543, 544-51 (1953), contra, Keeton, Defamation and Freedom of the Press, 54 Tex. L. Rev. 1221, 1233-59 (1976).
In sum, then, I am persuaded that the fair-comment privilege, a privilege with ancient roots in this State (see Hahnemannian Life Insurance Co. v. Beebe (1868), 48 Ill. 87), and which represents the trend of the constitutional common law of defamation, is applicable here.
If I am wrong on this point, however, and if the actual-malice standard should be applied, then I am persuaded that the majority opinion has incorrectly applied the standard. Under this standard, defendant Pechous is either entitled to a trial or summary judgment. Defendants Fineman and Field are not entitled to summary judgment, under this standard, and their case should be remanded for trial.